Cronin v Green and Carter
[2015] WASC 377
•14 OCTOBER 2015
CRONIN -v- GREEN & CARTER [2015] WASC 377
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 377 | |
| Case No: | CIV:1207/2013 | ON THE PAPERS | |
| Coram: | PRINCIPAL REGISTRAR GETHING | 14/10/15 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| B | |||
| PDF Version |
| Parties: | SUSAN ELIZABETH CRONIN JUDITH BETTY GREEN & MARY LYNETTE CARTER as Executors of the Estate of MARY ELLEN NANCARROW JUDITH BETTY GREEN BRIAN HERBERT NANCARROW MARY LYNETTE CARTER SHARON VALLELONGA HELEN MARGARET ROZEMA ROBERT JAMES NANCARROW |
Catchwords: | Family Provision Act 1972 (WA) Discontinuance of proceedings Costs |
Legislation: | Family Provision Act 1972 (WA), s 14(6) Rules of the Supreme Court 1971 (WA), O 23 r 2 |
Case References: | Clark v Richards [2003] WASC 5 Daniels v Hall [No 2] [2014] WASC 272 Dean v Collins [No 2] [2015] WASCA 151 Del Borrello v Friedman & Lurie (A firm) [No 3] [2014] WASC 204 Judith Betty Green and Mary Lynette Carter In Their Capacities as Joint Executors of the Estate of the late Mary Ellen Nancarrow v Nancarrow [2015] WASC 18 Kevin Ernest Judge As Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 National Australia Bank Ltd v Joyce [No 2] [2013] WASC 274 O'Neill v Mann [2000] FCA 1680 Pacella v Sherborne [2009] WASC 58 Pacella v Sherborne [No 2] [2010] WASC 186 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Southern Cross Pipelines Australia Pty Ltd v Kenneth Comninos Michael Western Australian Independent Gas Pipelines Access Regulator [2002] WASC 316 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
The Will of Mary Ellen Nancarrow, late of Bedingfield Lodge, 4 Bedingfield Road, Pinjarra in the State of Western Australia, deceased
- Plaintiff
AND
JUDITH BETTY GREEN & MARY LYNETTE CARTER as Executors of the Estate of MARY ELLEN NANCARROW
First Defendants
JUDITH BETTY GREEN
Second Defendant
BRIAN HERBERT NANCARROW
Third Defendant
MARY LYNETTE CARTER
Fourth Defendant
SHARON VALLELONGA
Fifth Defendant
HELEN MARGARET ROZEMA
Sixth Defendant
ROBERT JAMES NANCARROW
Seventh Defendant
Catchwords:
Family Provision Act 1972 (WA)- Discontinuance of proceedings - Costs
Legislation:
Family Provision Act 1972 (WA), s 14(6)
Rules of the Supreme Court 1971 (WA), O 23 r 2
Result:
Costs orders made
Category: B
Representation:
Counsel:
Plaintiff : No attendance
First Defendants : No attendance
Second Defendant : No attendance
Third Defendant : No attendance
Fourth Defendant : No attendance
Fifth Defendant : No attendance
Sixth Defendant : No attendance
Seventh Defendant : No attendance
Solicitors:
Plaintiff : AVA Legal
First Defendants : De Vita Legal
Second Defendant : Arns & Associates
Third Defendant : In person
Fourth Defendant : Arns & Associates
Fifth Defendant : In person
Sixth Defendant : Roe Legal Services
Seventh Defendant : Frichot & Frichot
Case(s) referred to in judgment(s):
Clark v Richards [2003] WASC 5
Daniels v Hall [No 2] [2014] WASC 272
Dean v Collins [No 2] [2015] WASCA 151
Del Borrello v Friedman & Lurie (A firm) [No 3] [2014] WASC 204
Judith Betty Green and Mary Lynette Carter In Their Capacities as Joint Executors of the Estate of the late Mary Ellen Nancarrow v Nancarrow [2015] WASC 18
Kevin Ernest Judge As Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122
National Australia Bank Ltd v Joyce [No 2] [2013] WASC 274
O'Neill v Mann [2000] FCA 1680
Pacella v Sherborne [2009] WASC 58
Pacella v Sherborne [No 2] [2010] WASC 186
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Southern Cross Pipelines Australia Pty Ltd v Kenneth Comninos Michael Western Australian Independent Gas Pipelines Access Regulator [2002] WASC 316
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
1 PRINCIPAL REGISTRAR GETHING: Mary Ellen Nancarrow (the Deceased) died on 2 June 2012. She was survived by six children, Brian Herbert Nancarrow, Mary Lynette Carter, Susan Elizabeth Cronin, Helen Margaret Rozema, Judith Betty Green and Robert James Nancarrow.
2 The Deceased left a will dated 22 April 2009. Probate was granted over the will on 15 August 2012 (the Will). The executors of the Will are Judith and Mary (the Executors). At the time of the death of the Deceased her estate was worth around $4.4 million. The Will relevantly provided for a parcel of land to be the subject of a specific bequest to Judith (with some contingencies which did not apply) and then for the residue to be divided into six parts. Five of the six parts were to go to Brian, Mary, Helen, Judith and Robert. The sixth part was to be divided equally between Susan and her daughter (the Deceased's granddaughter) Sharon Vallelonga.
3 Susan formed the view that the disposition of the Deceased's estate under the Will was not such as to make adequate provision for her proper maintenance, support and advancement in life. Accordingly, by originating summons dated 11 February 2013 she made an application seeking orders pursuant to Family Provision Act 1972 (WA) (FPA) s 6(1) (being Supreme Court action CIV 1207 of 2013).
4 Robert formed the same view, and by originating summons dated 8 February 2013, also made an application seeking orders pursuant to FPA s 6(1) (being Supreme Court action CIV 1233 of 2013).
5 By orders made on 25 March 2013, CIV 1207 of 2013 and CIV 1233 of 2013 were consolidated, with CIV 1207 of 2013 (that is, Susan's application) being the lead application. The Executors were the first defendants. Judith, Brian, Mary, Sharon, Helen and Robert were respectively the second to seventh defendants.
6 A series of mediations were listed between June 2013 and December 2013, only one of which proceeded, with the remainder being adjourned. It soon became apparent that there was an issue as to the construction of the specific bequest to Judith. Robert asserted that the specific bequest failed because the parcel of land described in the relevant clause could not fairly be construed as applying to property the Deceased in fact possessed. Judith asserted that the clause effected a valid bequest to her. If Robert's assertion was correct, then the disputed parcel of land would form part of the residual estate to which he was entitled to a sixth. The disputed parcel of land appears to be worth around $1.6 million, so the argument was far from academic.
7 The Executors then commenced an application pursuant to Administration Act 1903 (WA) (AA) s 45 posing two questions for the court as to the proper construction of the Will (the Will Construction proceedings). This application was commenced on 21 March 2014. Although all beneficiaries were parties, the running of the dispute was taken up by Robert and Judith. Both engaged senior counsel for the trial. In a decision reported as Judith Betty Green and Mary Lynette Carter In Their Capacities as Joint Executors of the Estate of the late Mary Ellen Nancarrow v Nancarrow1Le Miere J held that the clause in question reflected a valid bequest of the disputed parcel of land to Judith. His Honour ordered that the costs of the Executors, Robert and Judith, including all reserved costs, be taxed on a solicitor and own client basis and be paid out of the estate of the deceased.2
8 Susan died on 19 September 2014. Probate of her will was granted on 29 October 2014. Sharon is the executrix, and makes submissions on behalf of Susan's estate on the issue of costs. For ease of reference, I will refer to Susan as shorthand for Sharon in her capacity as executrix of Susan's estate.
9 The parties appeared before me on 27 August 2015 for case management in CIV 1207 of 2013. With the consent of all present, I granted Susan and Robert leave to discontinue the proceedings, and then discontinued the proceedings. Also by consent, I made an order that the issue of the costs of the proceedings be determined by me on the papers, and made a direction for submissions and affidavits to be filed.
What costs orders are sought?
10 Susan submits that each party to the proceedings should bear their own costs.
11 The Executors submit that Susan and Robert should pay the Executors' and Judith's costs of the proceedings to be taxed if not agreed. Alternatively, they say that there should be no orders as to costs with respect to the claim commenced by Susan, but that Robert should pay the Executors' and Judith's costs of the proceedings to be taxed if not agreed.
12 Judith submits that Susan and Robert pay the Executors' and her costs of the proceedings to be taxed if not agreed.
13 Robert submits that each party to the proceedings should bear their own costs.
14 Brian, Mary (in her own right), Sharon and Helen did not file any submissions in relation to costs. Nor did any of the parties who filed submissions seek costs from these parties. The appropriate costs order for these parties is that there be no orders as to costs, with the effect that they will bear their own costs.
15 Both Robert and Judith refer to material that is inadmissible. An affidavit was filed on the issue of costs on behalf of Judith. It was sworn by Simon David Tribble, a solicitor employed by her lawyers, and dated 17 September 2015. It annexed correspondence that is marked 'Without prejudice for the purposes of mediation' and 'Without prejudice'. Significantly, it is not marked 'without prejudice save as to costs'. Likewise, Robert's submissions contain references to what occurred during the course of the mediations.3 Evidence of anything said at a mediation is inadmissible.4 There is an exception for proceedings relating to a costs application, though only if 'under rules of court, the evidence or document is admissible for the purposes of determining any issue of costs'.5 The only such provision is Rules of the Supreme Court 1971 (WA) (RSC) O 4A r 8(6) in relation to a failure to cooperate report, so the exception has no present application.
16 I gave some thought to convening a process by which there would be a formal determination of the extent of the inadmissible material which would then be excised from the evidence before me, with the affidavits and submissions resubmitted. However, even if the inadmissible material was excised, I do not consider that it would change the views that I would have otherwise reached. The exercise would simply have been productive of additional cost with no material bearing on the outcome.
The power to order costs
17 Pursuant to FPA s 14(6), the 'Court may make such order as to the costs of any proceeding under this Act as it deems just'. RSC O 23 r 2 is to the same effect, providing that the court may grant leave to discontinue 'upon such terms as to costs … as may be just'.6 The award of costs is a matter of discretion to be exercised having regard to the circumstances of each particular case.7 However, the court 'will generally order that the successful party to an action or matter recover his costs'.8
18 The Executors are entitled to have their costs paid out of the Deceased's estate 'unless the Court otherwise orders', though the Court may otherwise order only on the ground that they have acted unreasonably, or have in substance acted for their own benefit rather than for the benefit of the fund'.9 No such assertion has been made in the materials before me.
19 The principles in relation to the award of costs for applications under the FPA were the subject of recent consideration by the Court of Appeal in Dean v Collins [No 2].10 The appellant was held on appeal to have been entitled to make a claim under FPA s 6(1), with the residuary estate being divided such that she received one third of it. Around nine months prior to the trial the appellant had made a Calderbank offer to the effect that she receive 30% of the residuary estate. Her success on appeal meant that she achieved a more favourable outcome than her Calderbank offer. Chaney J (with whom Martin CJ & Buss JA agreed) ordered that:
(a) each party bear their own costs up to a date which was 28 days after the date on which the Calderbank offer was made; and
(b) thereafter the respondents were to pay the appellant's costs of the proceedings before the master and the appeal, to be taxed if not agreed.
20 Chaney J described the 'general policy' of the court in FPA cases in the following terms:11
In relation to the question of whether the appellant's costs should be borne by the estate or by the beneficiaries named in the will, it is now the general policy of the court to order that the costs of proceedings under the Family Provision Act be borne by the beneficiaries or claimants who were unsuccessful in the proceedings. The reasons for that policy are exemplified by this case. First, an order that the costs be paid out of the estate would, in effect, have the consequence that the successful appellant would be bearing one-third of her own costs. Second, the substantive parties to the dispute which was litigated were the appellant and the named beneficiaries. As the named beneficiaries were unsuccessful in their opposition to the appellant's claim, there is no reason why the usual practice as to costs should not apply, with the consequence that they should be ordered to pay the appellant's costs.
21 In the present case, this general policy is to be applied in the context of the discontinuance of the proceedings. In relation to costs where a proceeding has been discontinued, the law may be summarised as follows:
(a) the underlying policy in the RSC relating to a discontinuance is that the discontinuing party should be liable for the other party's costs unless the court orders otherwise;12
(b) the conduct of the parties and the reasons for discontinuing the case can bear heavily on exercise of the discretion as to costs;13
(c) the court is not to try a hypothetical action between the parties to determine whether costs should be paid on proceedings being discontinued;14
(d) if 'it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings';15
(e) in some cases the court may be able to form the view, with confidence, that although both parties had acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried;16
(f) the reasonableness of the plaintiff's conduct in commencing and discontinuing the proceedings is relevant and must be considered in the context of the policy in (a);17 and
(g) it is also relevant to consider whether there has been a supervening act anterior to the conduct of the proceedings which has rendered the application futile.18
What costs order should be made as between the Executors and Susan?
22 Susan's position is that the parties to the proceedings should bear their own costs. Her position is that the sole reason for the decision to discontinue by her executrix was her death. There has not been any determination of the merits of her claim, so it cannot be asserted against her that her claim lacked merit. To the extent that the court may look at the merits, Susan's position is that there was a strong likelihood that her claim would have succeeded had she not died prior to its determination. At the time of commencement, Susan was a 69-year-old retired lady on a part pension, without a partner or spouse to assist her financially. Her modest fortnightly income was more than matched by her modest fortnightly expenses. She was in very poor health, amongst other ailments having been diagnosed with lung cancer. Her assets of approximately $587,000 were mainly illiquid, comprising a residence ($280,000) and superannuation ($175,000) and cash ($110,000).19 Under the Will, she stood to receive approximately $279,000 from an estate of around $4.4 million, giving her an asset position of around $864,000.
23 The Executors' position is that Susan and Robert should pay the Executors' and Judith's costs to be taxed if not agreed, or alternatively that only Robert should pay these costs. They submit that there is no reason why the general policy set out in Dean should not be followed upon a discontinuance. If no costs order is made, and the Executors' costs are borne by the Deceased's estate, it will have the effect of the other beneficiaries under the Will subsidising the costs of defending the discontinued claims.
24 As regards the merits of Susan's claim, the Executors note that on the face of the Will it is recorded that Susan had received some $283,000 from her mother prior to her death. Having regard to the assets set out above, the Executors submit it is unlikely that Susan's claim would have passed the jurisdictional threshold under FPA s 6(1).
25 Judith submits in her own right that Susan pay her costs to be taxed if not agreed, as well as those of the Executors. Her submissions as to the lack of merits of Susan's claim mirror those of the Executors.
26 Robert agrees with Susan that each party bear their own costs.
27 I am of the view that the appropriate exercise of the discretion to award costs is to make no order for costs as between Susan and the Executors. This is for four reasons.
28 The first is that the operative reason for Susan's claim being discontinued was her death in September 2014. Discontinuing the claim at that stage was an entirely reasonable step for her executrix to have taken.
29 The second is that I do not consider that there has been any undue delay productive of additional cost between the finalisation of the Will Construction proceedings (15 January 2015) and the application for discontinuance (first foreshadowed in a case management hearing on 1 August 2015). The August 2015 listings only occurred as a result of a case management summons issued by the court.
30 The third reason goes to the merits of Susan's claim. I am conscious that I am not to try the action on a hypothetical basis to determine whether costs should be paid. However, on the material before me, I am satisfied that Susan acted reasonably in commencing the proceedings, in particular given her poor health and likely costs of care if she required full time home assistance. Put slightly differently, this is not a case in which I can form a confident view that Susan would have failed if the matter had been fully tried.
31 The fourth is that an order that each party pay their own costs reflects the general policy set out in Dean.20 Although the expression of the policy by Chaney J was directed primarily to the costs of an unsuccessful claimant or beneficiary, it is consistent with that policy that where there is no unsuccessful beneficiary, and neither has acted unreasonably to date, that the beneficiaries, and not the estate, bear the costs. In not allowing Susan's costs to be taken out of the estate, I have given effect to the general policy in Dean by not requiring the other beneficiaries to subsidise Susan's claim.
32 I do not propose to adjust the position set out in RSC O 66 r 9(2) that the Executors' costs be paid out of the Deceased's estate. As regards the Executors, both Judith and Mary stood to have their entitlement under the Will decreased if Susan was successful, aligning their personal interests with their duty as the Executors to uphold the entitlements set out in the Will. The other residuary beneficiaries other than Susan also stood to benefit from the Will being upheld. In the particular circumstances of the present case, I do not consider it to be unjust that the residuary beneficiaries as a whole share the Executors' costs.
33 For these reasons, the just outcome as to costs as between Susan and the Executors is that Susan bears her own costs and the Executors' costs be borne by the Estate (subject to any adjustment in relation to Robert).
What costs order should be made as between the Executors and Robert?
34 Robert submits that it would be just and appropriate for the parties to bear their own costs.21 The submission is made on his behalf that from the point of consolidation (25 March 2013) both proceedings have run in consolidation, with the parties attending each court date in respect of and as parties of both applications.
35 Robert is critical of the Executors for not commencing the Will Construction proceedings at an earlier stage. However, as it was equally open to him to have commenced these proceedings,22 I do not give any weight to his concerns as to delay.
36 Robert's submissions contain two reasons for the discontinuance of the FPA claims: the determination of the Will Construction proceedings and Susan's death.23 He states that the affidavit filed in support of the application establishes 'at a minimum … a prima facie moral claim for greater provision from the estate'.24 He goes on to state that given the size of the estate and his contribution to estate assets, there is a reasonable basis for him to assert that no adequate provision had been made for him under the Will.
37 As regard the merits of Robert's claim, the Executors note that on the face of the Will it is recorded that Robert had received some $565,000 from his mother prior to her death. His personal assets as at the date of the death of the Deceased were between $1.84 million and $2.27 million.25 He did not disclose the value of any stock or farming equipment on his farming properties. Nor did he disclose any particular needs. He stood to receive an additional $465,000 under the Will. The Executors submit that Robert's claim had no reasonable prospect of success, and would not have passed the jurisdictional threshold.
38 In my view, the appropriate costs order as between Robert and the Executors is an order that Robert pay one half of the costs of the Executors to be taxed if not agreed. This is for four reasons.
39 The first is that, given Robert's financial position, I do not consider that he acted reasonably in commencing an application seeking orders under FPA s 6(1). The jurisdictional test requires him to establish that the $466,000 he is to receive under the Will, given his other assets, 'is not such as to make adequate provision [for his] proper maintenance, support, education or advancement in life': FPA s 6(1).26 Unlike Susan, he does not disclose any health issues. He has not placed any evidence before the court of a deficiency between his income and expenses. The reference to a 'moral claim' does not usurp the language of FPA s 6(1).27 Again, I am conscious that I am not to try the action on a hypothetical basis to determine whether costs should be paid. However, on the material before me, I am able to form a confident view that Robert was almost certain to have failed to meet the jurisdictional threshold if the matter had been fully tried.28
40 The second is that the reasons Robert gives as to why he consented to the proceedings being discontinued - the determination of the Will Construction proceedings and Susan's death - do not provide a compelling reason why a costs order should not be made against him. To the contrary, if he considered that he had a valid claim under the FPA, the determination of the construction issue against him significantly reduced his entitlement under the Will, thereby (at least theoretically) strengthening his claim under the FPA.
41 The third is that to the extent that Robert had a point that I regard as reasonably being the subject of litigation, it was the interpretation issue the subject of the Will Construction proceedings. I do not disagree with the point made in Robert's submissions that his conduct in pressing the preliminary construction issue was not unreasonable in all the circumstances.29 This is presumably reflected in the fact that he has received these costs out of the estate, taxed on a solicitor and own client basis. However, it is not apparent to me that there was any need for Robert to commence proceedings under the FPA in order to agitate the interpretation issue the subject of the Will Construction proceedings. As I have already observed, it is clear he had standing to commence proceedings pursuant to AA s 45.30 His conduct in commencing the FPA proceedings stands separately from his conduct in pressing for the determination of the construction issue.
42 Finally, I accept Robert's submission that the two claims have been run together. This would mean that an order that he pay all the Executors' costs would be excessive as part of those costs were in relation to Susan's claim. I am not able to discern a way in which to divide those costs at this stage in the proceedings, other than to divide them in half.
What costs order should be made as between Judith personally and Susan and Robert?
43 Judith seeks an order that Susan and Robert pay her costs.
44 To the extent that Judith in her own right as second defendant claims costs as against Susan, the same position should follow as for the Executors for the same reasons. Susan did not act unreasonably in commencing the FPA proceedings, nor did her executrix act unreasonably in discontinuing them.
45 The submissions filed on behalf of Judith personally go on to criticise Susan and Robert for failing to have regard to the practice directions when preparing their applications. To the extent that Susan's affidavits contain unnecessary material, this is an additional argument that she, and not the estate, should bear the costs of the claim.
46 Judith submits in her own right that Robert pay her costs to be taxed if not agreed. In the submissions filed on behalf of Judith, it is observed that Robert has not offered any reason for seeking to discontinue his application under the FPA. As there is no obvious impediment to him pursing this claim 'it follows that it can be inferred that the reason for the discontinuance is that there is no reasonable prospect of succeeding with his claim pursuant to the FPA'.31 Her submissions as to the merits of Robert's claim again mirror those of the Executors.
47 In the material before me, both Robert and Judith go into some detail as to the negotiation process throughout 2013, including the reasons for adjournments of the various mediations. Doing the best that I can to sift out the inadmissible material, Robert is critical of Judith and Mary for not ensuring that they were represented separately as Executors due to the conflict of interest with Judith's position as the beneficiary of the bequest of the disputed parcel of land. Judith is critical of Robert for insisting that adjourned mediations proceed notwithstanding the fact that no useful purpose would be served in so doing until the construction issue was determined. These criticisms are not of central relevance to the issue of costs.
48 In my view the appropriate costs order as between Judith personally and Robert is an order that Robert pay half of Judith's costs to be taxed if not agreed. My reasoning mirrors the reasoning as between Robert and the Executors, in particular:
(a) I do not consider that Robert acted reasonably in commencing the FPA proceedings, and am able to form a confident view that Robert was almost certain to have failed to meet the jurisdictional threshold if the matter had been fully tried;
(b) the reasons Robert gives for discontinuing his FPA claim do not provide a compelling reason for not awarding costs against him;
(c) Robert is already entitled to have his costs of the Will Construction proceedings paid out of the estate; and
(d) as both Susan's and Robert's claims proceeded together, it is only appropriate that Robert pay half of Judith's costs.
What final orders are appropriate?
49 With one exception, all beneficiaries should bear their own costs, a position reached by making no orders as to costs. The exception is that Robert is to pay one half of Judith's taxed costs. He should also pay one half of the Executors' costs. These costs are to be taxed on a party and party basis. The position of the balance of the Executors' costs should be made explicit by an order that the balance of the Executors' costs be paid out of the Deceased's estate on a solicitor and own client basis, making it clear that the Court has not disturbed the position set out in RSC O 66 r 9(2).
50 The orders are thus:
1. The seventh defendant pay one half of the first defendants' costs of the consolidated action to be taxed on a party and party basis if not agreed.
2. The balance of the first defendants' costs of the consolidated action be paid out of the estate of the Deceased on a solicitor and own client basis.
3. The seventh defendant pay one half of the second defendant's costs of the consolidated action to be taxed on a party and party basis if not agreed.
4. Otherwise, there be no orders as to costs, with any costs order inconsistent with this and the preceding orders being vacated.
1Judith Betty Green and Mary Lynette Carter In Their Capacities as Joint Executors of the Estate of the late Mary Ellen Nancarrow v Nancarrow [2015] WASC 18.
2 Orders made on 21 January 2015.
3 Seventh defendant's submissions dated 16 September 2015 [13].
4Supreme Court Act 1935 (WA) (SCA) s 71(1).
5 SCA s 71(3)(c).
6 RSC O 23 r 2(3) in relation to Susan as plaintiff and r 2(4) in relation to Robert as a defendant.
7Daniels v Hall [No 2] [2014] WASC 272 [10] (EM Heenan J).
8 RSC O 66 r 1(1).
9 RSC O 66 r 9(2).
10Dean v Collins [No 2] [2015] WASCA 151.
11Dean v Collins [No 2] [34].
12Kevin Ernest Judge As Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 [22], [39] (Corboy J) (Citystyle); Southern Cross Pipelines Australia Pty Ltd v Kenneth Comninos Michael Western Australian Independent Gas Pipelines Access Regulator [2002] WASC 316 [20] (EM Heenan J); O'Neill v Mann [2000] FCA 1680 [13] (Finn J).
13Del Borrello v Friedman & Lurie (A firm) [No 3] [2014] WASC 204 [18] (Lee AJ); Clark v Richards [2003] WASC 5 [27], [78] (McLure J); O'Neill [13].
14Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J) (Lai Qin); Citystyle [21].
15Lai Qin (625); National Australia Bank Ltd v Joyce [No 2] [2013] WASC 274 [5] (Edelman J); Citystyle [21]; Southern Cross [21] - [22].
16Lai Qin (625); Citystyle [21].
17Lai Qin (625); Citystyle [39].
18Citystyle [39].
19 See generally the plaintiff's affidavit sworn 11 February 2013.
20Dean [34].
21 See generally: seventh defendant's submissions dated 16 September 2015.
22Pacella v Sherborne [2009] WASC 58 [11] - [12] (Sanderson M); Pacella v Sherborne [No 2] [2010] WASC 186 (Blaxell J).
23 Seventh defendant's submissions dated 16 September 2015 [17], [23].
24 Seventh defendant's submissions dated 16 September 2015 [25].
25 See generally: affidavit of Robert Nancarrow, sworn 7 February 2013.
26 As to the nature of the jurisdictional test, see Dean [24].
27Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [73] (Gummow & Hayne JJ).
28Lai Qin (625); Citystyle [21].
29 Seventh defendant's submissions [22].
30Pacella v Sherborne [11] - [12]; Pacella v Sherborne [No 2].
31 Second defendant's submissions filed 27 August 2015.
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